Alberta Pilot Project Aims to Set Trial Dates Earlier in the Litigation Process Insight

Friday May 31, 2024 was the first opportunity for parties to obtain trial dates under a new pilot project at the Alberta Court of King's Bench. The pilot project, announced on April 23, 2024, facilitates applications for a trial date —whether on consent or contested—after the deadline for the exchange of affidavits of records has passed.

While Rule 8.5 already contemplated that judges could schedule trial dates at any time on application, the procedure was little used. Instead, to date, the Court generally required that parties complete all pre-trial steps before they could obtain a trial date, which would then typically be a year or more farther down the road.

This new pilot project encourages parties to make use of Rule 8.5. Under the new practice, any party to an action can apply for a trial date after pleadings have closed and 90 days after the deadline for the exchange of affidavits of records.

Obtaining a trial date under the pilot project

We have been advised by the Court that the application materials should include the following:

1. Form 38 Application to Set a Trial Date (the "Before Whom" section should state "Presiding Justice in Trial Appearance Court");
2. Litigation Plan (the document name must specifically indicate whether it is a Complex Litigation Plan or a Standard Litigation Plan);
3. Draft Order (in Word format);
4. Record of Pleadings; and
5. Affidavit of Service.

The Form 38 must include any information required for the Court to determine when the action will be ready for trial and how many days will be required for the trial.

Before filing the application, the applicant must serve every other party with the proposed litigation plan, as well as the proposed order entering the action for trial. The other parties have 10 days to respond and add information as necessary about their positions. The applicant can then file the Form 38 with the other materials, incorporating the comments from the other parties.

The Court will schedule Civil/Trial Appearance Court ("TAC") on the last Friday of each month in Calgary and Edmonton. The Calgary TAC will take place at 10:00 AM in Courtroom 1004. According to the Court, Justice Chambers will be replaced by TAC on those dates going forward. Outside of Edmonton and Calgary, applications will be heard via case conference under Rule 4.10.

A judge hearing the application may:

1. Set the action for a trial of specified duration, with procedural directions including an order that the parties follow a litigation plan;
2. Make a procedural order to facilitate the scheduling of a trial date; or
3. Dismiss the application.

Once a trial is scheduled, any party to the action may apply at TAC or before a regional supervising judge for relief related to deadlines, steps set out in litigation plans, procedural orders, and modifications to the estimated duration of the trial.

Prospects of success

Like courts across Canada, the Court is actively attempting to address ongoing concerns regarding expediency in Alberta's civil litigation process. Both the pilot project and the new streamlined trial process, which was launched in January 2024, will hopefully serve the Court's goal of resolving litigation more efficiently.

Whether the pilot project proves to be a success will depend on two key elements. First, counsel will have to cooperate to achieve the set pre-trial deadlines, recognizing that it is in the interest of all litigants to have an efficient and timely justice system. Second, even the most diligent litigants will be stymied if the broader delays facing the judicial system remain unaddressed and a special takes half a year or more to be heard.

For now, the pilot project is an untapped resource. May 31, 2024 came and went without a single application heard by TAC in Calgary. It may be that news of the pilot project has not yet spread, or that parties require more time to prepare their applications. The next TAC will be held June 28, 2024, which will hopefully be the first opportunity in Calgary to see the pilot project in action.